All the comments about the HuffPost class action case seem off the mark. Some consider there was a contract that promised nothing in return for stories. That's not exactly true. The contract promised exposure in a "free" journal of news and opinion.
Peter Friedman considers there is no case for unjust enrichment, but that's not what this case is actually about. The claim is for deceptive business practices under NY State law. Plaintiffs argue that HuffPost lied to them about the exposure (which kept on decreasing as more writers were hired) and the "free" nature of the website.
"Free" is an important word in consumer law, since a business cannot advertise something as "free" and then demand payment for it. While HuffPost asked for articles, they also asked for publicity through social networking groups. Thus, they actually required payment (user lists) for something they had advertised as free.
The "creativity" of the lawsuit lies in its use of consumer protection laws to protect writers from online websites that offer "payment" and then refuse to deliver. Plaintiff alleges that HuffPost solicited his assistance (not just his articles) to help build a "free" website and then turned the website into a business venture that benefitted only the owners. Under consumer law, this could be considered a "bait and switch" marketing tactic, which is also illegal under New York Law. New York law also permits consumers to sue businesses who have violated this law.
Any contract the writers may have with HuffPost cannot be enforced if it was secured by deceptive business practices (malum prohitibum). Once the court rules that there was a deception practiced by the business, the unjust enrichment charge does not need to be proven, contrary to what Friedman alleges. Any enrichment gained by deception is unlawful per se.
Anyone who continues to write for AOL on the same terms is an idiot, of course.
If the internet was designed to help you find things, it was designed badly. Saying the internet isn't about copying makes no sense. The internet works by copying. When you find something on the internet, a copy of that something appears on your screen, from which you are free to copy it to your computer.
Some people have taken advantage of mass marketing to increase the demand for their product and then sell it at a premium. The internet completely defeats this business model because anything can be copied for free.
Calling people pirates when they use the internet as a copy machine is like calling someone a pirate who whistles a song.
Come on Mike, aren't you being a little harsh? Immoral? Not at all. These people are trying to get some money for their labor. Nothing immoral about that. It's the American way. Just the way the Koch brothers want to get some value for the money they spent on political races. There was no contract. They were made no promises. But they do get repaid. That's the way the system works.
The people who helped build Huffington Post were dumb and trusting. They assumed that their interests would matter when they contributed to the enterprise. It's not immoral to ask for a piece of the pie when the company is liquidated.
Your position seems to be that dumb and trusting people deserve to get screwed. You pretend that exposure is as good as a paycheck. Let me assure you, it is not. People may not be clever enough to parlay a couple of bylines into a career. That does not mean they deserve to be thrown under the bus.
The people who created the HuffingtonPost are immoral, because the got theirs and told everyone else to take a hike. People need to have consideration for their fellows. Without humanity there is no human race, just a rat race.
(B) GIFT CERTIFICATE- The term `gift certificate' means an electronic promise that is--
`(i) redeemable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo;
`(ii) issued in a specified amount that may not be increased or reloaded;
`(iii) purchased on a prepaid basis in exchange for payment; and
`(iv) honored upon presentation by such single merchant or affiliated group of merchants for goods or services.
------
So, Groupon's coupon is a gift certificate. The law also says that it shall be unlawful to issue a gift certificate with an expiration date less than 5 years.
The purpose of this law is to protect the consumer from buying a gift certificate only to discover that it has expired before you can use it. This is a familiar bait and switch tactic. The fact that Groupon or the vendor will give you something else of equal value is irrelevant. You paid for something and they refused to deliver.
The music publishing companies in question are going out of business. Their business model is obsolete. They would like to change the copyright laws to keep on profiting from Beethoven's Fifth Symphony forever.
Since new classical compositions make very little money for the composer anyway, composers are better served by publishing their works online.
The additions that publishers make are more than just changing a note or two. But the Schirmer edition of Beethoven's Sonatas include commentaries which themselves were written over a century ago. Any new commentaries of this sort can be read in a library (or online) and incorporated into the score without needing to buy a new score. This would not be copyright infringement since the commentaries only make suggestions on how to perform a piece. They do not change the music itself.
This is a non-issue that will fade away as the companies themselves fade away.
Shakespeare did not steal his plays from anyone. A lot of us wish we could write like Will; it's highly unlikely he wished he could write like anyone else. Shakespeare did use plots and characters in the public domain. Incidentally, using someone else's work is not stealing, even when the work is copyrighted as it is today.
Shakespeare not only did not copyright his work, he didn't even publish it, probably because that would make it too easy for his competitors to perform. Not a single one of his plays was published during his lifetime.
So why do we have the texts of Shakespeare's plays today? Pirates. That's right, pirates copied his plays so they could make money performing them. Without those pirates, Shakespeare's words would be lost to history and literature. Remember that the next time someone complains about how immoral piracy is!
As others have commented, fair use is worthless as an excuse for using copyrighted materials, since you have to go to trial to take advantage of it. Lawyers are expensive, so most people faced with a copyright infringement suit simply acceded to the copyright holder's requests.
This case is interesting because the courts have started recognizing the problems represented by trolls. They have stopped issuing routine injunctions before the case is argued. This has been a major weapon for trolls. Perhaps this case will result in further anti-troll measures.
I think Limewire should try a statistical approach: for each song, what was the income before Limewire, what was it during Limewire, and what was it after Limewire. If the income did not decrease significantly during Limewire (likely) and did not increase significantly after Limewire (very likely) then there were no losses caused by Limewire. Limewire should also pay close attention to royalties paid to artists. If record companies did not pay royalties, they can't claim that amount of money as "lost revenue", since it was fraudulently obtained revenue. Finally, they should try to show a pattern of fraud in the record companies' dealings with artists. The evidence could be used to bring a "criminal cartel" charge against the record companies and their representative organizations.
I doubt whether the record companies want to reveal any of this information to Limewire. Even though the judgment has already been delivered, the parties could agree on a settlement. The RIAA could announce that they can't prove damages and the case would be over. The only question is, how much will Limewire charge to let that happen?
You guys are too much. You live in a country where monopoly interests have seized much of the wealth and are in the process of seizing the government as well, but you naively contend that the government should not try to stop them. Listen up: What benefits billionaires does not benefit you, unless you happen to be one.
While I usually find Andy Grove's fulminations annoying and one-sided, I finally find him informed and persuasive. What happened, Andy? Did you wake up and realize that all the money, taxes, and sweat that Americans put into Silicon Valley have created a system that siphons off wealth to other countries and benefits only a few in our own? It's not hard to choose which jobs should be protected. They're the ones that require technical training and increase productivity. But the government doesn't have to choose industries. All it needs to do is level the playing field, as shedly and others have suggested. We should place a premium on training our own workers and improving our schools. The government should plan to increase wages and well-being.
Comparisons with other countries are futile, except to point out how people somewhere else are solving problems that face all of us. What's your excuse, America? Are you simply channeling GW Bush ("It's so haaard!") The US can do it if we stop whining and listening to idiots trying to convince us we can't. The government is evil and can't do anything well...except when they built the interstate highway system or put a man on the moon. Both those massive outlays of tax money led to tremendous leaps in productivity, subsidies to people and industries that were undreamed of, these industries led to US domination of the world economy. But now? Government shouldn't try to do anything, because short-sighted individuals want their bank accounts to get bigger.
Too bad for EMI. Whatever they gave Grooveshark, it was too much. The technology still exists for another company to move in on EMI and force them to "negotiate" yet another deal. Why do small companies negotiate with big companies? Because it's better to get a deal than defend a lawsuit until you bleed to death.
Absolutely true, anonymous coward. Furthermore, most governmental leaks occur at the top levels because a company or a government wants to leak information favorable to itself. Since those leakers are high-level guys, they will never be the targets of lawsuits. Genuine whistleblowers need protection from their bosses.
It should be noted that films made on a shoestring budget are a product of the Hollywood mythmaking machine. However much a movie may have cost originally, by the time it gets to the screen in your local cineplex, millions have been spend on remastering the original film, adding sound effects, dubbing in dialog, and hyping the film that cost "only $60,000". Wikipedia estimates Blair Witch cost $500,000 to $750,000 to make (including post-production), and $25 million to promote. Film companies are understandably reluctant to spend that kind of money promoting what are basically home movies.
Most of the commenters have already decided that ACORN is a criminal enterprise. Why is that? Because the right wing media have been proclaiming it for years without offering proof? If you tell a lie enough times, people will believe it. Some of these people need to get their noses out of the Washington Times and the Fox media and look at some stories from the other side. I suggest Mediamatters.org is a good place to start, since they cover the right-wing smear campaigns directly. If you look there, you will find that, contrary to right-wing claims, ACORN workers did call police to talk about the "pimp and hooker" that came into their office. Also, you guys should recognize that there was no criminal enterprise involving child prostitution (it was just a prank, right?) so ACORN staffers committed no crime by failing to report it.
Th lawsuit is an excellent idea. The two protagonists may be students, but Fox news and BigGovernment.org, an Andrew Breitbart enterprise, have plenty of money. Those two co-conspirators aired edited videos that slandered ACORN and led to the loss of millions of dollars in grant money intended to aid the poorest segments of our population. In the court case, ACORN will be able to obtain the unedited videos and discover whether the editing slanted the raw material.
As for Fox News, what legitimate news organization would air edited video clips as news? True, Fox regularly airs video clips taken out of context, but at least those are legitimate quotes (from Obama or someone else) and can be contested because the original video is part of the public record.
Doesn't it bother you conservatives that the organizations being attacked most vociferously by Fox and friends (ACORN and SEIU) provide charitable assistance to minorities and the poor? I believe conservatives feel compelled to cover these stories because the targets are different from themselves, and hence threatening. The joke is on them, however. The attacks on ACORN have consumed time and money that could have been used to present conservative viewpoints needed to win elections. The group obsession with people of color has reflected badly on those who espouse it, as recent election results show. This obsession may be the fatal flaw that consigns the Republican Party to the dustbin of history.
Institutions find it hard to change because everyone in the company knows how to make a profit using the same old practices, and no one in the company knows anything else. Newspapers had the opportunity to become Craigslist, but Craigslist has revenues in the $250 million range. The New York Times has revenues in the $3 billion range, and Craigslist has the lion's share of classified ads for the entire US. Google has a large workforce of skilled software engineers and online marketers. Newspapers have workforces of journalists. When Intel and IBM made big shifts in their business models, they were successful because they did not need to hire new technologists, only retrain the ones they had. A better paradigm is what happened to Time/Warner and AOL. AOL was a leading exponent of the internet. TW acquired it to use its expertise in making changes to their business model. The resulting company did little except milk AOL for profits and then throw the company away, precisely because TW executives had no understanding or respect for the new technologies. Newspapers are fated to die by their nature in a world that has passed them by.
Under the rules of evidence, Facebook is required to turn over to the plaintiff all documents that apply to the case. The judge may be ignorant of technology, but he is not ignorant of the law. Can the same be said of those criticizing him here? Don't they prejudge the case before it has been tried?
If the software relating to the patent is as elementary as it seems at first glance, Facebook could easily defend itself with a "prior art" claim, that is, by proving the code in question was in general use before it was patented and therefore the patent is invalid. If the patent is declared invalid, all programmers will benefit from the eradication of another bogus software patent.
Only in Andy Grove's world (which is not congruent with our own) does a patent derivative bear a close relationship to a mortgage derivative. Above all, there is no assumption that the value of patents will continue to rise indefinitely; most patents decline in value due to competition. Patents all have income associated with them, and that is their value; mortgages frequently have no value associated with them (if there is no equity value in the property) and are then purely speculative. There will never be a patent bust where all patents suddenly lose value, because their variety is far greater than that of real estate, crossing many industries and nations. I suspect there will never be an insurance derivative of patents that attempts to cash in when a patent loses value; but if there is one, it will not be subject to manipulation since the patents will not all fall predictably at the same time. The patent market will more closely resemble the equity market, where bubbles may exist in parts of the market but seldom in the entire market at the same time.
So the East Asians get to say more in each txt than anybody else does.
Uh...no, there is not a one-to-one ratio between words and characters in Asian languages. More like one-to-two in Chinese, but Japanese is even less condensed since it uses many particles and spells out many words using syllabaries. Irrelevant, I admit, but amusing.
Techdirt has not posted any stories submitted by Allan Masri.
HuffPost
Peter Friedman considers there is no case for unjust enrichment, but that's not what this case is actually about. The claim is for deceptive business practices under NY State law. Plaintiffs argue that HuffPost lied to them about the exposure (which kept on decreasing as more writers were hired) and the "free" nature of the website.
"Free" is an important word in consumer law, since a business cannot advertise something as "free" and then demand payment for it. While HuffPost asked for articles, they also asked for publicity through social networking groups. Thus, they actually required payment (user lists) for something they had advertised as free.
The "creativity" of the lawsuit lies in its use of consumer protection laws to protect writers from online websites that offer "payment" and then refuse to deliver. Plaintiff alleges that HuffPost solicited his assistance (not just his articles) to help build a "free" website and then turned the website into a business venture that benefitted only the owners. Under consumer law, this could be considered a "bait and switch" marketing tactic, which is also illegal under New York Law. New York law also permits consumers to sue businesses who have violated this law.
Any contract the writers may have with HuffPost cannot be enforced if it was secured by deceptive business practices (malum prohitibum). Once the court rules that there was a deception practiced by the business, the unjust enrichment charge does not need to be proven, contrary to what Friedman alleges. Any enrichment gained by deception is unlawful per se.
Anyone who continues to write for AOL on the same terms is an idiot, of course.
IP Maximalists
Some people have taken advantage of mass marketing to increase the demand for their product and then sell it at a premium. The internet completely defeats this business model because anything can be copied for free.
Calling people pirates when they use the internet as a copy machine is like calling someone a pirate who whistles a song.
Re: Re:
The people who helped build Huffington Post were dumb and trusting. They assumed that their interests would matter when they contributed to the enterprise. It's not immoral to ask for a piece of the pie when the company is liquidated.
Your position seems to be that dumb and trusting people deserve to get screwed. You pretend that exposure is as good as a paycheck. Let me assure you, it is not. People may not be clever enough to parlay a couple of bylines into a career. That does not mean they deserve to be thrown under the bus.
The people who created the HuffingtonPost are immoral, because the got theirs and told everyone else to take a hike. People need to have consideration for their fellows. Without humanity there is no human race, just a rat race.
Federal law says...
`(i) redeemable at a single merchant or an affiliated group of merchants that share the same name, mark, or logo;
`(ii) issued in a specified amount that may not be increased or reloaded;
`(iii) purchased on a prepaid basis in exchange for payment; and
`(iv) honored upon presentation by such single merchant or affiliated group of merchants for goods or services.
------
So, Groupon's coupon is a gift certificate. The law also says that it shall be unlawful to issue a gift certificate with an expiration date less than 5 years.
The purpose of this law is to protect the consumer from buying a gift certificate only to discover that it has expired before you can use it. This is a familiar bait and switch tactic. The fact that Groupon or the vendor will give you something else of equal value is irrelevant. You paid for something and they refused to deliver.
Classical Music Online
Since new classical compositions make very little money for the composer anyway, composers are better served by publishing their works online.
The additions that publishers make are more than just changing a note or two. But the Schirmer edition of Beethoven's Sonatas include commentaries which themselves were written over a century ago. Any new commentaries of this sort can be read in a library (or online) and incorporated into the score without needing to buy a new score. This would not be copyright infringement since the commentaries only make suggestions on how to perform a piece. They do not change the music itself.
This is a non-issue that will fade away as the companies themselves fade away.
Re: Re: Re: Re:
Shakespeare not only did not copyright his work, he didn't even publish it, probably because that would make it too easy for his competitors to perform. Not a single one of his plays was published during his lifetime.
So why do we have the texts of Shakespeare's plays today? Pirates. That's right, pirates copied his plays so they could make money performing them. Without those pirates, Shakespeare's words would be lost to history and literature. Remember that the next time someone complains about how immoral piracy is!
(untitled comment)
This case is interesting because the courts have started recognizing the problems represented by trolls. They have stopped issuing routine injunctions before the case is argued. This has been a major weapon for trolls. Perhaps this case will result in further anti-troll measures.
proof of loss
I doubt whether the record companies want to reveal any of this information to Limewire. Even though the judgment has already been delivered, the parties could agree on a settlement. The RIAA could announce that they can't prove damages and the case would be over. The only question is, how much will Limewire charge to let that happen?
Monopolies
A serious misunderstanding
USA just can't do it...
Goodbye, Grooveshark, hello...?
RE RE Straw Man
Shoestring budgets
Great story, strange conclusion
Th lawsuit is an excellent idea. The two protagonists may be students, but Fox news and BigGovernment.org, an Andrew Breitbart enterprise, have plenty of money. Those two co-conspirators aired edited videos that slandered ACORN and led to the loss of millions of dollars in grant money intended to aid the poorest segments of our population. In the court case, ACORN will be able to obtain the unedited videos and discover whether the editing slanted the raw material.
As for Fox News, what legitimate news organization would air edited video clips as news? True, Fox regularly airs video clips taken out of context, but at least those are legitimate quotes (from Obama or someone else) and can be contested because the original video is part of the public record.
Doesn't it bother you conservatives that the organizations being attacked most vociferously by Fox and friends (ACORN and SEIU) provide charitable assistance to minorities and the poor? I believe conservatives feel compelled to cover these stories because the targets are different from themselves, and hence threatening. The joke is on them, however. The attacks on ACORN have consumed time and money that could have been used to present conservative viewpoints needed to win elections. The group obsession with people of color has reflected badly on those who espouse it, as recent election results show. This obsession may be the fatal flaw that consigns the Republican Party to the dustbin of history.
Institutions can't change, you're right
A little legal sense here
If the software relating to the patent is as elementary as it seems at first glance, Facebook could easily defend itself with a "prior art" claim, that is, by proving the code in question was in general use before it was patented and therefore the patent is invalid. If the patent is declared invalid, all programmers will benefit from the eradication of another bogus software patent.
Only in Andy Grove's fevered brain
Re: Data Efficiency
Uh...no, there is not a one-to-one ratio between words and characters in Asian languages. More like one-to-two in Chinese, but Japanese is even less condensed since it uses many particles and spells out many words using syllabaries. Irrelevant, I admit, but amusing.
Techdirt has not posted any stories submitted by Allan Masri.
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